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State v. Wilkins

Supreme Court of Georgia

October 2, 2017

THE STATE
v.
WILKINS.

          BOGGS, JUSTICE.

         The State appeals from the trial court's order granting Nathaniel Willie Wilkins' pretrial motion in limine to exclude incriminating statements made by his co-defendant Michael Dontaa Jones with regard to a 2013 double murder. The trial court held that some of the statements, while made by a co-conspirator, were not made "in furtherance of the conspiracy" and thus did not fall within the exception to the hearsay rule provided by OCGA § 24-8-801 (d) (2) (E). Because the trial court did not abuse its discretion in so doing, we affirm.

         Wilkins and Jones were indicted by a Chatham County grand jury for malice murder, felony murder, and aggravated assault arising from the execution-style shootings of Forrest Ison and Alice Stevens at their home in Thunderbolt, Georgia. Jones' case was severed from that of Wilkins, and he was tried in April 2016 and found guilty on all counts. Most of the statements complained of here were admitted into evidence at Jones' trial.[1] The State expects the evidence to show that Wilkins, Jones, and Tracy Burgess, the driver of the getaway car, [2] attempted to avoid arrest after the murders by hiding in the homes of friends and family members in Georgia and South Carolina. During that time, Jones allegedly made a number of incriminating statements to witnesses:[3]

(1) A witness who worked with Jones testified at his trial that Jones displayed a pistol in his waistband and told the witness that the male victim got him fired and he and appellee lay in wait for him, "caught them at their house and went to rob them . . . [the male victim] went bucking so he shot him"; his female companion "went to crying and yelling so we shot that b---- too."[4]
(2)An acquaintance of Jones and Wilkins informed the police that, while Jones and Burgess were at the witness' home, Jones stated that he and Wilkins were involved in a homicide. No sworn testimony appears in the record, and a police report narrative gives only the gist of the statement, but the State contends that the witness saw a gun which Jones concealed at his house.
(3)Jones' estranged wife testified before the grand jury that Jones told her that he "did something horrible" and "shot somebody." The trial testimony referenced by the State is not included in the record.
(4)A police report states that Jones told another witness that he "got messed up in Thunderbolt." The trial court noted in its order that this witness did not testify at Jones' trial, but his expected testimony was provided in the State's brief.
(5) Another police report states that Jones told Burgess' stepsister that an attempted robbery failed and that Wilkins "got cold feet, " so Jones shot the male victim, and then Wilkins shot the female victim. The trial testimony referenced by the State does not appear in the record, but the State contends the witness testified that she was trying to get to know her stepsister, "but they used me for something totally different."
(6)Burgess testified at Jones' trial that Jones told her "he got another body." She also testified, outside the presence of the jury, that Jones wrote her a letter from jail instructing her to put the blame for the murders on Wilkins and a fictitious third party.[5]

         Before trial, Wilkins filed a motion in limine. In an omnibus order, the trial court excluded these six statements. It held that statements made outside Wilkins' presence were not in furtherance of the conspiracy and were not admissible. From this order, the State appeals.

         The admission of a co-conspirator's statements is governed by OCGA § 24-8-801 (d) (2) (E), which provides:

(2) Admissions by party-opponent. Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is: . . .
(E) A statement by a coconspirator of a party during the course and in furtherance of the conspiracy, including a statement made during the concealment phase of a conspiracy. A conspiracy need not be charged in order to make a statement admissible under this subparagraph.

         This provision differs substantially from former OCGA § 24-3-5, which stated: "After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the ...


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